NEW JERSEY LAWYER

DAILY BRIEFING      06/28/2005


News Briefs

STATE SETTLES TRUCKING FEES DISPUTE FOR $8.25 MILLION
New Jersey will pay $8.25 million in refunds and attorney fees to truckers to settle two American Truckers Association suits against the state’s separate assessments on transporters of hazardous waste. The agreement, subject to approval by the state Tax Court, would refund payments prior to 1998 of a $212 flat fee, which the New Jersey Supreme Court a year ago ruled discriminated against out-of-state truckers, and for a separate fee on hazardous waste hauling, according to ATA Counsel Robert Digges Jr. Kevin J. Coakley of Connell Foley in Roseland was co-counsel in the suit. 6-27-05

JURY AWARDS $431,500 TO BREAST CANCER VICTIM
An Essex County jury awarded $431,500 to a Hillside woman who claimed her doctor deviated from accepted practices by performing a modified radical mastectomy to alleviate pain following conservative radiation treatment for cancer. The jury before Judge Claude M. Coleman ordered Dr. David Befeler of Westfield pay $170,000 for pain and suffering and $261,500 for lost wages to Sandra Burgess, now 55, who was forced to retire as a trucker for Verizon as a result of the 2000 surgery, which caused lymphedema in her left arm. Zurich-American Insurance Co. will pay the award. The plaintiff in Burgess v. Befeler argued the doctor should have treated her pain with medication. Kenneth F. D’Amato of Rosenfelt & D’Amato of Clifton represented Burgess, and Louis J. Dughi Jr. of Dughi & Hewitt in Cranford defended. 6-27-05

BUSINESS COURT BILL UP FOR ASSEMBLY VOTE
A bill that would create a Commercial and Technology Part within the Superior Court is on the Assembly’s voting calendar for Thursday. A-3544, sponsored by Assemblymen Patrick J. Diegnan Jr. (D-Middlesex) and David C. Russo (R-Bergen), a long-time special court advocate, would establish a separate cadre of judges within each vicinage to hear business cases. Supporters of the bill, including the New Jersey State Bar Association and the New Jersey Business and Industry Association, have argued that even relatively simple business and technology matters are outside the experience of most sitting judges. The Supreme Court, through its Administrative Office of the Courts, has maintained the current court system can handle commercial cases and no change is needed. While the bill is on the calendar for a vote, Thursday also is the legislature’s deadline to pass a 2005-06 budget, so voting on bills could get bumped. 6-27-05

LAWYERS INVITED TO PREDATOR-TRACKING SEMINAR
Lawyers are among those invited to a Department of Corrections symposium Wednesday on global positioning satellite technology that agency and police may soon be using to track convicted sex offenders. The conference, from 9:30 a.m. to 12:30 p.m. at the Albert C. Wagner Youth Correctional facility in Bordentown, will cover proposed state legislation A-4016 and S-1889 that would establish the system on a pilot basis, how the technology works and legal ramifications. To register, call DOC at (609) 292-9340. 6-27-05

THE PRIZE WASN’T THAT SWEET; WINNER SUES
When the WLTO-FM radio station in Lexington, Ky., sponsored a contest promising a lucky audience member “will win 100 grand,” it was referring to the Nestle Co. candy bar of that name. But winner Norreasha Gill thought it meant $100,000, so she has filed suit in Fayette District Court seeking that much cash. Station managers offered $5,000, but Gill demanded $95,000 more because she spent several hours listening to the station to win the contest. She may have a case because Federal Communications Commission regulations say contest descriptions cannot be false and stations must conduct them as advertised. 6-27-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, JUNE 27, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JUNE 27, 2005:

ATTORNEYS
BANCO POPULAR NORTH AMERICA v. GANDI
New Jersey Supreme Court, A-5/6, June 27, 2005. (38 pages). Facts-on-Call Order No. 92543

Although there is no cause of action for creditor fraud in New Jersey, an attorney who allegedly assisted his client in transferring assets to defraud a creditor may be liable for conspiracy to violate the Uniform Fraudulent Transfer Act and for misrepresentations that he made in connection with an opinion letter that he issued.

THE SUPREME COURT has announced that it will release opinions in HENNESSEY v. WINSLOW TWP., A-11, and RANDAZZO v. RANDAZZO, A-15, on June 28, 2005. The issue on appeal in Hennessey addresses whether a plaintiff is barred from filing a complaint that alleges disability and age discrimination in violation of the Law Against Discrimination where it was found in a prior administrative hearing that the defendants had made reasonable accommodations for the plaintiff’s disability. The issue on appeal in Randazzo addresses whether it was error for the trial court to require the sale of real property before the entry of a divorce judgment and whether the award of alimony to the plaintiff was appropriate in light of the defendant’s age and health.



APPROVED FOR PUBLICATION
INSURANCE
COOPER HOSPITAL UNIVERSITY MEDICAL CENTER v. PRUDENTIAL INSURANCE CO.
Appellate Division, A-1861-03T5, approved for publication June 27, 2005. (14 pages). Facts-on-Call Order No. 92544

The 1998 amendment to the deemer statute does not limit an insurer’s obligation to provide the full benefits mandated by New Jersey law to an out-of-state insured who is injured in an automobile accident in New Jersey when the insurer is authorized to transact automobile insurance business in New Jersey.

NOT APPROVED FOR PUBLICATION
DISCOVERY
IN RE VERIFIED PETITION OF VENEZIA
Appellate Division, A-5447-04T5, June 24, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18154

Order compelling the deposition of a former reporter for The Record newspaper vacated and the verified petition of the former probationary police officer dismissed; the reporter’s December 28, 2004 article about the officer’s termination contained statements that were attributed to the Mayor of Leonia; the officer filed a notice of tort claim alleging that the Mayor had defamed him; although the Mayor asserted in a follow-up article that he was misquoted in the December 28 article, The Record published an editor’s note stating that it stood by that article; the reporter and The Record challenged the officer’s petition for pre-litigation discovery under Rule 4:11-1 to depose the reporter about his interview with the Mayor; contrary to the Law Division’s holding that the reporter and The Record had waived their right to assert the “newsperson’s privilege” under N.J.R.E. 508, the privilege was “absolute” in the context of this case; in light of its decision and the editor’s note, the Appellate Division found “no legal or logical basis” for the petition to continue.

DOMESTIC VIOLENCE
SABIA v. MANCUSO
Appellate Division, A-5646-03T3, June 24, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18151

Final domestic violence restraining order against the defendant ex-boyfriend based on a finding of assault affirmed substantially for the reasons set forth by the trial court; based on the plaintiff ex-girlfriend’s credible testimony, the trial court found that the parties had quarreled, that the defendant had pulled the plaintiff down the stairs and threatened her with a shotgun, and that the plaintiff was afraid of the defendant; the trial court’s findings were supported by adequate, substantial, and credible evidence; neither the plaintiff’s delay in reporting the incident nor her continued contact with the defendant after the incident compelled a contrary result.

HUSBAND AND WIFE
RUSH v. RUSH
Appellate Division, A-3-04T2, June 24, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18152

Chancery Division decision on remand on the defendant ex-husband’s application for a reduction or elimination of his alimony obligation reversed and remanded for entry of an order reducing the defendant’s obligation to zero; in February 2003, the Chancery Division reduced the defendant’s obligation from $3,500 per month to $1,500 per month, and the Appellate Division reversed and remanded for further factual findings and proceedings in 2004; on remand, the Chancery Division’s imputation of $40,000 in income to the 66-year-old defendant was based on its examination of “Yahoo’s Hot Jobs” rather than substantial credible evidence in the record; it was “clear” from the plaintiff’s testimony that her current domestic partner was “fully” meeting her financial needs; because the record indicated both that the defendant currently was unable to pay alimony and that the plaintiff ex-wife currently did not need alimony, the Appellate Division opted not to remand again.

PARENT AND CHILD
CURRY v. PERRINE
Appellate Division, A-1214-04T2, June 27, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18153

Portion of an order that increased the plaintiff father’s parenting time with the parties’ son affirmed and portion of the order that increased the plaintiff’s child support obligation remanded; as to parenting time, the trial court did not abuse its discretion by changing weekend visitation — which consisted of one overnight every weekend with Friday and Saturday night alternating — to two overnights from Friday evening to Sunday evening three times per month because it “clearly thought” that the change would be in the child’s best interests and because there was no evidence to the contrary; the prior visitation order had provided for one overnight visit per weekend, but the child’s travel time for visitation had increased from a “minimal” amount to a total of four hours after he and the defendant mother relocated; as to child support, remand was required to enter a corrected order that made the increase effective as of the filing date of the defendant’s application.

FROM THE FEDERAL COURTS
IMMIGRATION LAW:
PAPAGEORGIOU v. GONZALES
Third Circuit, No. 04-3135, June 24, 2005. By Van Antwerpen, C.J. Also on panel: Ambro, C.J. and Tashima, Senior C.J. for the Ninth Circuit, sitting by designation. Appealed from the Board of Immigration Appeals. (7 pages). Facts-on-Call Order No. 92545

The Third Circuit denied the petition for review of a final order of the Board of Immigration Appeals that summarily affirmed an order of removal entered by an immigration judge against the petitioner. The petitioner was a Greek citizen and a permanent resident of the United States who was convicted in 1998 of distributing cocaine in violation of 21 U.S.C. §841(a)(1), and removal proceedings were brought against him. The petitioner claimed that the Board’s summary affirmance denied him due process because the Board did not issue a separate opinion. Although the petitioner’s claim would have been dismissed for lack of jurisdiction before May 11, 2005, the Third Circuit concluded that it was not barred from reviewing the claim (1) because the REAL ID Act of 2005, which was signed by the President on May 11, 2005, permits all aliens to obtain judicial review of constitutional claims and questions of law upon filing petitions for review of final removal orders and (2) because the Act applies retroactively to pending petitions for review. On the merits, the Third Circuit denied the petition because it had previously held that due process challenges to such summary affirmances by the Board are “without merit.”


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